Questions emerge about whether anti-McLachlan mailers were legal

For months, the race between incumbent Republican J. Paul Brown and Democratic challenger Mike McLachlan for the 59th District state House had been mostly funded by locals. That all changed recently as filings with the Colorado secretary of state show that around $150,000 poured in from outside sources in just the last month.

The spending relates to two kinds of entities: super political action committees (PACs) and 527s (the latter are so named because of the section in the tax code giving them exemption). The effect of super PACs on races around the country is novel because their unlimited political spending capacity was only affirmed by the Supreme Court in 2010.

Rules pertaining to such groups’ independent expenditure are murky and highly technical, and there are conflicting opinions about whether two anti-McLachlan groups are operating inside the law. Brown, meanwhile, has no connection to either group.

“I’m committed to running a clean campaign highlighting the positives about me,” he said. “You see these mailers – I don’t know who they are, where they came from, what they’re sending. It makes the race less local.”

The two mailers he is referring to arrived in voters’ mailboxes in the past week. The groups behind them are the CitizenLink Colorado Independent Expenditure Committee and Colorado Citizens For Accountable Government.

The mailing by CitizenLink was a large, glossy double-sided anti-abortion postcard that arrived Tuesday. In fine print the mailer says it was “paid for by CitizenLink Colorado Independent Expenditure Committee.”

No such super PAC existed Wednesday, according to the Colorado secretary of state.

What did exist was CitizenLink, an affiliate of Focus on the Family, which was listed as a tax-exempt 501(c)(4) organization. According to the IRS, these organizations must operate “exclusively for the promotion of social welfare.”

On Thursday, however, the group had successfully registered its super PAC, said Carrie Kintz, CitizenLink’s media contact.

Kintz said, “the law says you have 48 hours to register the committee with the state. The postcard dropped on Tuesday, so we are abiding by applicable laws in the state of Colorado.”

Rich Coolidge, spokesman for the secretary of state’s office, said this characterization of the law was inaccurate because super PACs must register within two business days of making expenditures or accepting donations of more than $1,000. Colorado statutes define “expenditure” as when “actual spending occurs or when there is a contractual agreement requiring such spending.”

When asked to explain how CitizenLink’s super PAC, which is based in Colorado Springs, managed to design, order, print, transport, mail, correctly address and pay for its anti-McLachlan mailing on Tuesday – such that it also arrived in Durango mailboxes by the close of business – Kintz refused to go into detail, saying “the law does not specify the details. We conformed to the law.”

Coolidge said a 501(c)(4) that behaves like a super PAC risks losing its tax-exempt status, and that any political entity that violates the law could face penalties and fines.

The other mailing was a long glossy card paid for by the powerful Republican 527 Colorado Citizens For Accountable Government. It asks, “Who is endangering families in southwest Colorado?” On the flip side, it features a large picture of McLachlan and berates him by name on various points.

When 527s produce electioneering communications, they are required to disclose which candidates the communications oppose. The Republican group’s mailing landed in many La Plata County mailboxes on Saturday. The secretary of state’s filing deadline was Monday.

Coolidge said that while the group’s Monday filing disclosed it had spent $110,000 on a mailing targeting 12 Democratic candidates, it does not list McLachlan as one of its targets.

The group’s listed agent, Andy Nickel, did not return five requests for comment.

Coolidge said his agency usually takes action against such groups only after an individual lodges a complaint, and no complaints had so far been lodged against either Colorado Citizens For Accountable Government or CitizenLink.

Brown said he finds the unchecked influence of outside groups “frustrating,” even though it is ostensibly on his behalf.

“It’s totally out of our control,” he said.

McLachlan, too, said he was shocked to learn a Democratic super PAC, the Colorado Accountable Government Alliance, had spent more than $100,000 on cable advertising in September on his behalf.

Another Democratic super PAC, the Community Information Project IE Committee, spent an additional $14,914 on door-to-door canvassing in mid-September to support McLachlan.

Republicans are retaliating, with the major Republican 527 The Colorado Leadership Fund LLC spending $20,359 on ads for Brown, also in mid-September.

Justin Miller, communications director of the Colorado GOP, said he wasn’t surprised that independent expenditures were overwhelming the 59th District, which was redrawn last year in a bitterly contested redistricting process that left it more competitive for Democrats.

“It’s a hotly contested seat, and there’s only a one-seat majority in the state House. Our goal is to get Republicans elected, so we’re going to do everything we can to make sure that happens,” he said.

In 2010, GOP groups spent as much as $56,572 on Brown’s behalf – more than Brown spent himself – whereas no Democratic groups spent money on behalf of his Democratic opponent, Brian O’Donnell.

Matt Inzeo, spokesman for the Colorado Democratic Party, said, independent expenditures are the “x factor” in the race for the 59th district seat.

“That’s the tricky part – you can’t control it,” he said, “and a candidate’s work can be amplified or negated with the single stroke of a pen if the right person sets up their own super PAC.”